In Depth

The 7th Circuit Court of Appeals has ruled it does not have jurisdiction to review immigration orders denying a specialized
visa to a non-citizen trying to stay in the country after assisting in an investigation or prosecution.

The appellate court’s ruling came today in Juan Gabriel Torres-Tristan v. Eric H. Holder, Jr., Nos. 10-14-11,
10-2532 and 10-333, a case involving three petitions for review on orders from the U.S. Department of Homeland Security.

Petitioner Juan Gabriel Torres-Tristan entered the U.S. illegally from Mexico as a minor in 1993, and he served an Illinois
sentence on robbery and aggravated battery because of his involvement with the Latin Kings gang. The U.S. Immigration and
Naturalization Service ordered his removal, and that happened in July 2001. Despite not being able to re-enter without prior
approval from the U.S. attorney general, Torres-Tristan re-entered without permission three months later and returned to the
Chicago area. He was assaulted in late 2002 and sustained substantial injury. He worked with police investigating the assault
to pinpoint the attackers, though that was not successful.

He remained in the Chicago area for seven years, becoming engaged and having a child without any official attention to his
illegal immigration status. In January 2010, DHS officials arrested him and reinstated the prior removal order from 2000.
While in federal custody awaiting removal, Torres-Tristan filed a petition with the U.S. Citizenship and Immigration Services
seeking a U visa that would grant him temporary lawful status based on his cooperation in the police investigation of the
2002 attack.

Because his previous removal order from 2000 was in effect at the time of the attack and before the police cooperation, federal
officials determined he wasn’t eligible for a U visa and denied his visa and waiver petitions, as well as a later request
for reconsideration. Those actions are what Torres-Tristan sought to have reviewed by the federal courts.

In a 22-page order, the 7th Circuit denied his requests. Judge David Hamilton wrote for the unanimous panel that also included
Judges Daniel Manion and Diane Wood.

With regard to judicial review of the DHS’s reinstatement of the 2000 removal order, that was the only petition the
court found it has jurisdiction over. The court denied the request on the merits.

“The second and third petitions seek to create a novel route to obtain, apparently for the first time in the circuit
courts of appeals, judicial review of orders by (USCIS) that denied petitioner the ‘U Visa’ he sought to prolong
his unlawful stay in the United States,” Judge Hamilton wrote, later delving into language in the U visa regulations
issued in recent years and generally addressed in caselaw.

Describing this as “an unprecedented expansion of our very limited judicial review of the reinstatement,” Judge
Hamilton described why the court was rejecting the argument. He wrote that a Supreme Court ruling from 1983 allowing orders
to be cancelled “by operation of law” and similar provision in the U visa regulation is an unlikely means for
accomplishing the result Torres-Tristan wants.

This petition review request was a collateral matter for the DHS, something the federal courts aren’t allowed to review,
he wrote.

Denying the first petition, the appellate panel dismissed the others for lack of jurisdiction without reaching the merits.

Conversations

0 Comments

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or
hateful.

You are legally responsible for what you post and your anonymity is not guaranteed.

Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content
are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.

No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are
relevant to the topic at hand, but please do not link to objectionable material.

We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag
a post simply because you disagree with it.